Legislation in various jurisdictions alters the common law right to control access to one???s land by allowing the imposition of rights of access in favour of one landowner over the land of another. The relevant legislation can be divided into two categories. The first-generation legislation (s 88K, Conveyancing Act 1919 (NSW) and s 180, Property Law Act 1974 (Qld)) permits the creation of easements over servient land to facilitate the development of dominant land. The second-generation legislation (the Access to Neighbouring Land Act of New South Wales, Tasmania and the United Kingdom) permits the creation of temporary rights of access over servient land to facilitate work on dominant land. This thesis examines the extent to which this change in the law can be justified by three modes of ethical discourse: right-based, duty-based, and goal-based reasoning. An examination of the first-generation legislation and the cases in which it has been applied suggests that a form of goal-based reasoning can be used to justify its enactment. The legislation is needed to facilitate the efficient use of land where the existence of a bilateral monopoly and the possibility of strategic bargaining puts at risk the conclusion of a mutually beneficial agreement regarding access. A review of the second-generation legislation and the law reform reports and parliamentary debate that preceded its enactment indicates that the legislation can be justified by a form of duty-based reasoning. The legislation is needed to bring about a proper social ordering by imposing access rights where this would be consistent with the ideal of good neighbourliness. The thesis concludes that although these goal-based and duty-based discourses make an arguable case for the enactment of both generations of the legislation, neither of them, in an unadulterated form, provides a conclusive justification. Rather, an eclectic approach that draws on both discourses is required. It proposes that the legislation???s compensation provisions be amended to reflect the commingling of the ideas of efficiency, a properly ordered society and intensive land use, and to allow the servient owner to share in the benefits generated by the imposition of access.
| Identifer | oai:union.ndltd.org:ADTP/282175 |
| Date | January 2006 |
| Creators | Grattan, Donald Scott, Law, Faculty of Law, UNSW |
| Publisher | Awarded by:University of New South Wales. Law |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | Copyright Donald Scott Grattan, http://unsworks.unsw.edu.au/copyright |
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